Expert shopping: a third bite at the cherry

03 November 2017

“As a solicitor-led company with vast experience of the personal injury and clinical negligence sector, we are very well placed to guide our law firm customers and panel of medico-legal expert witnesses through these types of tricky situations. It’s important that we do this to ensure that we achieve the best possible outcome, allowing all concerned to meet their duties to the court.”

When it comes to expert evidence, the courts are always very careful to restrict what is allowed in personal injury claims. The expectation is that a single report from a medical, or infrequently a non-medical expert, witness will be sufficient for the vast majority. But that isn’t always necessarily the case…

In the High Court, Mr Justice Stuart-Smith recently gave judgment in Vilca v Xstrata and another where he came to the unusual conclusion that not just a second, but a third expert witness in the same specialism could be instructed.

When a third expert witness can be instructed

The situation provides a valuable review of the case law and principles to be applied when an application is made for more time to obtain a further expert’s report, when the earlier report cannot be relied upon. Stuart-Smith J. summarised the importance of the situation as being able to protect against the undesirable practice of expert shopping; in other words where a party decides that they do not like the evidence of the first expert instructed and want to get a second expert in the hope of getting a more favourable opinion. He emphasised that even when there was no suspicion of any abuse of process, the court still has the power to impose a condition of disclosure of the original expert’s reports.

In Vilca v Xstrata, the expert witness had withdrawn at a very late stage because of ill health, forcing the solicitor to apply to the court for extra time in order to obtain and serve a new report. The solicitor assured the court that had it not been for the expert’s ill health, they would have relied on them at trial. However, it then became apparent that the firm had previously commissioned a report from an altogether different expert witness, which they had abandoned in favour of the second expert, because they considered them to be more eminent and experienced than the first.

Despite this, the judge accepted that this was not a case where there was any concern about ‘expert shopping’. The solicitors were given permission for extra time to get a third expert report

Stuart-Smith J. took the view that there was no other good reason to impose the usual disclosure condition. He decided that seeing the earlier reports would only prove to be a distraction and a hindrance. He recognised that it was to be expected that there will be some differences in opinion (or expression of opinion) between experts, but that it did not follow that these would assist the court or the opposing party in identifying the correct resolution of any issue it has to decide. He also made it clear that he (as the trial judge) was never going to be influenced by a ‘numbers game’, in which it is suggested that because two experts hold one view, anyone else would think in the same manner.

“At MAPS Medical Reporting, we have delivered several hundred thousand medico-legal reports in the UK and inevitably, in some cases, expert witnesses have to be abandoned for a variety of reasons, whether that it because they have become unwell or cannot be used,” says David Stothard, managing director of MAPS Medical Reporting.

“As a solicitor-led company with vast experience of the personal injury and clinical negligence sector, we are very well placed to guide our law firm customers and panel of medico-legal expert witnesses through these types of tricky situations. It’s important that we do this to ensure that we achieve the best possible outcome, allowing all concerned to meet their duties to the court.”

Our experience of medico-legal reporting

MAPS Medical Reporting provides quick access to reputable experts and high quality, specialist medical and medico legal reports to provide its customers with robust medical evidence to expedite both treatment services for the victim and the claims process. Contact us to find out more about how we can support you.